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The Deflate-gate Drama: A Win for the Patriots scores a Touchdown for Arbitration

The Deflate-gate Drama: A Win for the Patriots scores a Touchdown for Arbitration

Source:
Law.com

Date:
October 7, 2015

By Lorraine M. Brennan, Esq.
October 7, 2015
T
he “Deflate-gate scandal,” in which the New England
Patriots, and in particular their star quarterback,
Tom Brady, were accused of deflating footballs beneath
the required PSI (12.5-13.5 psi) to somehow gain an advan-
tage over competing teams was a very hot topic among
American football enthusiasts. However, it has also become
a case study on how the arbitration process for vacating
and confirming arbitration awards under the Federal Arbitra-
tion Act (FAA) worked properly, thus ensuring the integrity
and fairness of the process.
During the January 18, 2015 AFC Championship game
between the New England Patriots and the Indianapolis Colts,
a ball thrown by Brady was intercepted by the Colts line-
backer, who turned it over to the Colts equipment staff as
he believed the football felt underinflated. The Colts equip-
ment manager, in violation of the rules, used a pressure
gauge to measure the football and found that the inflation
level was approximately 11 psi, which was below the required
standard. At halftime, NFL officials collected and tested
11 of the balls supplied by the Patriots and four balls that
the Colts had prepared. All 11 of the Patriots balls were
under-inflated below the required 12.5 psi. The balls were
re-inflated to 13 psi for the second half of the game, in which
the Patriots were victorious.
Not long after the game the NFL commissioned an investi-
gation of the event. Leading the investigation was Ted Wells,
Esq., an attorney with the law firm of Paul Weiss, and Jeff
Pash, the NFL Executive President and General Counsel. The
investigation was undertaken pursuant to the NFL “Policy
on Integrity of the Game & Enforcement of Competitive
Rules,” which was sent from Roger Goodell, the Commission-
er of the NFL to Chief Executives, Club Presidents, General
Managers and Head Coaches. Notably, this policy was not
distributed to the players.
The Wells Report concluded that “it is more probable than
not” that Brady was at least generally aware of the inap-
propriate activities of McNally and Jastremski (the Officials
Locker Room attendant and Patriots equipment assistant
in charge of footballs, respectively) involving the release of
air from Patriots game balls.” The Wells report also concluded
that “it is unlikely that an equipment assistant and a locker
room attendant would deflate game balls without Brady’s
knowledge and approval.”
Following the issuance of the report, a disciplinary decision
letter was sent to Patriots owner. A separate letter was to
Brady informing him of the disciplinary action to be taken
against him – a four game suspension. Brady appealed the
disciplinary action through the Player’s Association. Com-
missioner Goodell appointed himself as the arbitrator to
hear Brady’s appeal, which he had the authority to do under
the Collective Bargaining Agreement (CBA) with the Players.
The Player’s Union filed a motion seeking Goodell’s recusal
from serving as the Arbitrator, but the motion was denied by
Goodell, who claimed under the CBA he had the discretion
to serve as a hearing officer in any appeal involving conduct
detrimental to the integrity of the game.
This article was originally published by LAW.COM
and is reprinted with their permission
1.800.352.JAMS
| www.jamsadr.com
The Deflate-gate Drama:
A Win for the Patriots scores
a Touchdown for Arbitration Brady, through the Players Association, made several discov-
ery motions. First, he requested “[a]ll Documents created,
obtained, or reviewed by NFL investigators in connection
with the investigation; Second, he moved to compel the
testimony of NFL Executive Jeff Pash, a senior executive of
the NFL who had been designated co-lead investigator for
the Wells Report, as well as a number of other document
requests upon which the Players Association intended to
question Pash. These requests were denied by Goodell, citing
the CBA wherein documents to be used at the hearing were
required to be turned over “no later than three calendar days
prior to the hearing,” and that the CBA provides for “tightly
circumscribed discovery.”
In July 2015, Goodell published a 20 page Award on Brady’s
appeal, which upheld the four game suspension. The Goodell
award went far beyond what the Well’s report had concluded,
in that Goodell stated that “Mr. Brady knew about, approved
of, consented to, and provided inducements and rewards in
support of a scheme by which, with Mr. Jastremski’s support,
Mr. McNally tampered with game balls.”
The NFL then moved to confirm the Arbitral Award in the
Federal Court in New York, while at the same time the Players
Association moved to vacate the award in the Federal Court
in Minnesota. As the NFL was first to file, the motion to
confirm and the motion to vacate were consolidated in the
Federal Court in New York. Judge Richard Berman presided
over the proceedings.
Judge Berman recognized that the standard for review of arbi-
tral awards under the FAA 9 U.S.C. Section 10 is a deferential
one, yet nonetheless he noted that “the deference due an
arbitrator does not extend so far as to require a district court
to countenance, much less confirm, an award obtained with-
out the requisites of fairness or due process.” Judge Berman
focused on numerous instances in the arbitration where
Brady was not given a fair hearing, including the fact that
Brady was never provided with the “Policy on Integrity of the
Game & Enforcement of Competitive Rules,” nor was he ever
advised that he would be subject to suspension from the
game for “general awareness” of ball deflation by others.
Judge Berman focused on the fact that Goodell had likened
Brady’s conduct to the use of anabolic steroids, a practice
that had in the past subjected NFL players to suspensions
from games, a comparison he soundly rejected. He also found
that Brady had been denied the opportunity to examine the
co-lead investigator in the case, Jeff Pash, which was not in
line with NFL precedent wherein players must be afforded
the right to confront their investigators. Judge Berman ruled
that the denial of that opportunity was “fundamentally un-
fair” and in violation of FAA Section 10(a)(3), which resulted
in prejudice to Brady. The Judge also found that Brady was
improperly denied the opportunity to have equal access to
investigative files, and that this fact was especially note-
worthy as Paul Weiss, who participated in preparing the
“independent” Wells report, represented the NFL before the
Judge and actually cross-examined Brady. The Court ordered
the award to be immediately vacated. The NFL is appealing
Judge Berman’s decision.
This case is noteworthy as the arbitration process worked
as intended. The Court made it clear that while deference
is clearly given to arbitral awards, it will not be so when a
party is not given basic procedural fairness. So while there
will still be those who continue to obsess about deflated foot-
balls, the real win in this process was for the fundamental
integrity of arbitration. And that is a touchdown not only
for those who work in the arbitration field, but the users of
the process as well. •
Lorraine M. Brennan is a full time arbitrator and mediator at JAMS,
specializing in international dispute resolution, employment,
complex commercial and intellectual property among other
specialties. Her bio can be found at www.jamsadr.com. Based
in the New York office, Ms. Brennan was the Managing Director
of JAMS International for three years, and worked at the ICC
International Court of Arbitration as well as the CPR Institute in
New York City. She is a litigator by training and clerked in the
SDNY. She has been an adjunct at Cornell Law School, Shantou
University Law School in Guangdong, China, and is currently an
Adjunct Professor at Georgetown Law Centre, where she has taught
for many years. The views expressed in this piece are her own, and
not those of JAMS. She is a native of New England, but admittedly
not a football fan. She was assisted with the underlying technical
aspects of the Deflate-Gate saga by Lisa Duggan Brown, M.S. in
Engineering Management, Northeastern University.
This article was originally published by LAW.COM
and is reprinted with their permission
1.800.352.JAMS
| www.jamsadr.com

The Deflate-gate Drama: A Win for the Patriots scores a Touchdown for Arbitration

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